Must contributor agreements be physically signed?

Question

I've been developing an API internally with a few friends, and hope to expand it and make it open to the broader public. I've highlighted a lot of background in this question, but to recap, it's a smaller project that has mostly been intended for educational use.

We're going fairly well, found a name for it (Spoiler! It's called Snowdrop!) and are quite impressed with the way we're going. In preparation for going public, we've been looking around, wondering if we should get a license. To give us more control on the project, we've thought about doing contributor agreements.

Naturally, we came here. Found Harmony Agreements, but found one thing in common with many agreements: that they all need to be physically signed. Of course, this becomes a hassle: we scare off people who may want to contribute, and for those who inexperienced with open source, it becomes a hassle for them as well.

Our combined ignorance in both knowledge and experience makes us reluctant to go out and explore (even just a little bit). To stop anything from happening to us, and to not have to go through any attribution issue or random stuff with contributors, we just figured that we would just making any contributions our own - assigning any copyright to ourselves, which is basically the equivalent of a Copyright Assignment Agreement.

We're somewhat confused by this, and used an analogy between websites and the Terms of Use. Loading a webpage normally implies automatic acceptance of the Terms and Use of that webpage. Why can't any contribution imply that the copyright is assigned to us (we can place a sort of contributing file, or a section in the Wiki or Website as a part of the organization or the repository)?

Now of course, the most important question here is, should we even bother in this? Are there even contributor agreements that "follow" the analogy that I noted above?

Answer 1

There seem to be two separate questions here: must Copyright Assignment Agreements be physically signed and if not, will an implicit agreement suffice?

Firstly, in jurisdictions with the legal framework for recognising digital signatures - which is at least the US and EU - there appears to be nothing peculiar to a CAA that requires physical paper and physical signatures.

Secondly, whether an implicit licence ("by pressing the register contributor button below, you understand and accept that you will be bound by...") or a click-through licence (check box plus "I understand that I am bound by the project's linked terms, and that I am entering into the CAA") is able to substitute for an explicit version is a more open question. Different jurisdictions give different weights to such licences; Wikipedia holds that in the US

Few cases have considered the validity of clickwrap licenses. Still, in the cases that have challenged their validity, the terms of the contract have usually been upheld

whereas this article in JILT noted that at the time

The doctrine of privity in English law provides that contracts are binding only on those party to them ...[I]t could be argued that the shrink-wrap licence would be unenforceable by English law because there is no consideration from the purchaser to the software company. The licence then becomes an unenforceable set of guidelines ... To date, no English court has addressed the question of the validity of shrink-wrap licences.

whilst merrily noting that in Scotland, the Court of Session has held that they are valid (though in an interesting way).

If it were my project, I'd insist that all contributors start by supplying a GPG key, and requiring that all their substantive contributions (providing ssh keys for source access, commit messages, and of course the signing of an explicit CAA) had to be done under that key. In other words, the physicality of the CAA doesn't worry me, but it's explicitness does.

But I am neither a lawyer nor the founder of a software project, and until someone who's both comes by, I don't think you can expect a great answer to this question.

Answer 2

My understanding is that by accessing source code you agreeing to the terms of use but not of contribution.

From my understanding simply contributing to a project does not cause you to agree to the contributor agreement. However, it is my understanding that you could get them to add their name to the bottom of a license file and that can work.

In the United States, a digital signature can be legally binding (Public Law 106-229, Public Law 105-277). However, to be safe you may want to have contributors electronically sign it.

I am not a lawyer. This is not legal advice. Before acting upon legal information found online consult a certified practitioner of law.